Campos v. Plan. Comm'n

153 Haw. 386

539 P.3d 170

Rene O. CAMPOS, Plaintiff-Appellant/Appellant,

v.PLANNING COMMISSION of the County of Kaua'i, County of Kaua'i Planning Department,andCounty of Kaua'i, Defendants-appellees/appellees.

NO. CAAP-17-0000540

Intermediate Court of Appeals of Hawai'i.

October 31, 2023

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NO. 5CC16-1-000132)

On the briefs:

Jonathan J. Chun, Līhu‘e, for Plaintiff-Appellant/Appellant.

Mark L. Bradbury, San Clemente, CA, for Defendant-Appellee/Appellee County of Kaua'i Planning Department.

HIRAOKA, PRESIDING JUDGE, WADSWORTH AND MCCULLEN, JJ.

OPINION OF THE COURT BY MCCULLEN, J.

Plaintiff-Appellant/Appellant Rene O. Campos appeals from the Circuit Court of the Fifth Circuit’s¹ (1) June 13, 2017 Final Judgment, and (2) April 19, 2017 Findings of Fact and Conclusions of Law, in favor of Defendants-Appellees/Appellees the County of Kaua'i, the County of Kaua'i Planning Department, and the Planning Commission of the County of Kaua'i.

Campos owns real property “described as Unit A of the Seacliff Plantation - Lot 25 Condominium Project Located in [Kīlauea], Kaua'i … containing an area of 5.0 acres” (Property).² Findings of Fact (FOF) 1.³ This project is comprised of Campos’s Property and two other “apartments with improvements thereon.” FOF 1.

Campos’s “Property is located in a State Land Use District … Agricultural District, the Kaua'i County General Plan Agriculture Land Use Designation Area, Special Management Area ..., the North Shore Development Plan Area, and the Open Space, Special Treatment Scenic/Ecological ... Resources District.” FOF 2. “Further, a portion is in the Comprehensive Zoning Ordinance [(or CZO)] Agriculture District and another portion is in the CZO Open District.” FOF 2 (emphasis added). According to Campos, the soil on the Property is rated B, C, and D.

This secondary appeal arises from the Planning Commission’s revocation of a Provisional Nonconforming Use Certificate, issued to Campos, allowing the structure on the Property (Guest House) to be used as a single-family transient vacation rental. On appeal, Campos asserts that the revocation violated Kaua'i County’s Comprehensive Zoning Ordinance, his grandfather rights under the United States and Hawai'i Constitutions, his due process right, and its own rules.⁴

We affirm because use of the Guest House, as originally built, violated the zoning permit obtained by the prior owner, and consequent- ly there was no prior legal use to be grandfathered. We also hold that Campos was afforded due process and waived the argument that the Planning Commission violated its own rules.

I. BACKGROUND

The background in this case spans over twenty years, starting with the Property’s prior owner.

A. Prior Owner

In 1998, the prior owner of the Property, Simon Potts, applied to the Planning Department for a zoning permit. On the application, Potts indicated that the lot size was 12.407 acres, the zoning was “Ag/Open STR,” and the existing land use had “AG/Farm Dwelling.” (Formatting altered.) Under “DESCRIPTION OF PROPOSED USE, IMPROVEMENT, ALTERATION, AND/OR CONSTRUCTION,” Potts wrote “CONSTRUCTION OF GUEST COTTAGE.”

Architect Daniel Moran (Architect Moran) prepared Zoning Plans for the Guest House, which were submitted as part of Potts’s zoning permit application. FOF 3. The Zoning Plans indicated that the Guest House would consist of 484 square feet of floor area, without a kitchen. FOF 3.

The Planning Department issued Potts a Class I zoning permit in July 1998, Zoning Permit No. Z-437-98, to construct the Guest House, and indicated the occupancy type as “OTHER.” After a permit was issued for a Gazebo in September 1998, no other zoning permits were approved for the Property. FOF 4.

About two years later, in 2000, the Department of Public Works, Building Section, approved Building Plans, also submitted by Architect Moran, for the Guest House and issued a Building Permit. FOF 5. However, the Building Plans differed from the Zoning Plans because the Building Plans included a kitchen for the same Guest House. FOF 5.

In 2006, Campos purchased the Property from Potts, and began operating it as a transient vacation rental, “and continued operation of the Noni Orchard situated thereon under the same independent contractor as” Potts. FOF 6.

B. Zoning Ordinance Nos. 864 (2008) and 904 (2010)

As explained infra in more detail, in 2008, the County adopted Ordinance No. 864, prohibiting transient vacation rentals that were not within the Visitor Destination Area,⁵ pursuant to Kaua‘i County Code (KCC) Title IV, Chapter 8, Article 17. Ordinance No. 864, however, “also established a procedure for any owner, operator, or proprietor of a single-family transient vacation rental operating outside of" the Visitor Destination Area, as of March 7, 2008, to obtain a nonconforming use certificate to continue operating as a transient vacation rental. KCC § 8-17.10(b) (2010); FOF 33.

Campos (providing a Texas address) sent the Planning Department a letter authorizing his attorney in Līhu'e and his brother, David Campos (also providing a Texas address), “to act as [his] agents for the filing and processing of the Application for a Use Permit and Class III Zoning Permit, as well as any other land-use permits and approvals relative to said application.”

About two years later, in 2010, Ordinance No. 904 amended the grandfather provision established by Ordinance No. 864 and addressed single-family transient vacation rentals operating on lands designated agricultural.

C. Campos’s Application for a Nonconforming Use Certificate

On October 15, 2010, following the adoption of Ordinance No. 904, the Planning Department received Campos’s application to register his Guest House identified as the “Hawaiian Romantic Cottage” as a transient vacation rental, and requesting a nonconforming use certificate. FOF 8. Campos’s application identified the unit as a “studio, 1 bath SFR.” FOF 8. Campos represented the unit as a “single family vacation rental” in the State Land Use Agricultural District. FOF 8.

Campos also represented that “Building permit number(s) Z-437-98 was approved on 6-19-98 for all structures on the property and there were no expansions, alterations, improvements, or uses contrary to State and County land use and planning laws” and “[t]here were not any legal expansion or improvements made on the property after March 7th 2008.” FOF 9. The application included an “As Built Drawing” of the Guest House, again by Architect Moran, showing a kitchen. FOF 10.

In his application, Campos requested: (1) a Special Permit pursuant to Hawai'i Revised Statutes (HRS) § 205-6 and Hawai'i Administrative Rules Title 15, Subtitle 3, Chapter 15, Subchapter 12 as “is required for the proposed use of the Subject Property, which is within the State Land Use Agricultural District, in conjunction with a transient vacation rental use of the dwelling on the Subject Property”; (2) a Use Permit pursuant to “CZO Chapter 8, Article 20,” “as a git is notenerally permitted use (although single family dwellings are generally permitted under CZO Section 8-7.2(a)(15), the short-term rental may trigger the need for a Use Permit)”; and (3) a Class IV Zoning Permit pursuant to “CZO Sections 8-7.7(4), 8-8.7, and 8-19.6.”

The Planning Department “provisionally approved” Campos’s application, and issued the Provisional Nonconforming Use Certificate. FOF 11.

Planning Department personnel inspected the Guest House, and determined it indeed contained a kitchen, “but there was no conversion permit to change ‘the guest house to a legal single family residence as mandated by Ordinance No. 904 nor were the interior kitchen improvements authorized by permit.’ ” FOF 12.

As a result, in a December 22, 2011 letter, the Planning Department revoked Campos’s Provisional Nonconforming Use Certificate, and instructed Campos to stop using the Guest House as a transient vacation rental or face fines “up to $10,000 and/or up to $10,000 per day for each day the violation persists.” FOF 12.

D. Campos’s Appeal to the Planning Commission

In January 2012, Campos appealed the Planning Department’s decision revoking the Provisional Nonconforming Use Certificate, and requested a public hearing. FOF 14. In March 2014, a Planning Department Inspection/Research Report confirmed Campos was still operating his Guest House as a transient vacation rental. FOF 16. As of November 2015, the Guest House was being advertised online as containing “a kitchen with a refrigerator, stove top burner, oven, dishwasher, blender, ice maker, coffee maker and toaster.” FOF 17.

Campos’s contested case hearing was held in November 2015. The Hearing Officer issued his report, recommending the Planning Commission deny Campos’s appeal and affirm the Planning Department’s revocation of the Provisional Nonconforming Use Certificate because “there was, no conversion permit to convert [Campos’s] Guest House with a kitchen to a legal single family dwelling unit as mandated by Ordinance No. 904, nor were the interior kitchen improvements authorized by permit.” The Hearing Officer also recommended fining Campos $25,000 for operating his Guest House as a single-family transient vacation rental outside the Visitor Destination Area.

After holding oral arguments, the Planning Commission agreed with the Hearing Officer’s recommendations, and issued its Findings of Fact, Conclusions of Law, Decision and Order affirming the Planning Department’s decision.

E. Campos’s Appeal to the Circuit Court

Campos appealed to the circuit court. The circuit court heard arguments, and entered its Decision and Order affirming the Planning Commission’s Decision and Order.

Regarding the fines imposed, the circuit court stated that from December 2011, “Campos knew that he was instructed by the Planning Department to cease and desist use of the Guest House as a [transient vacation rental] and terminate any further advertising of the Subject Property for ...